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Rule Implementation on Hold Due to Litigation

The U.S. Securities and Exchange Commission (SEC) announced that the Commission will meet on Wednesday, March 6 to vote on its proposed rule for public companies to disclose climate-related information in their registration statements and annual reports. Multiple news sources have reported that the final version may not be as expansive as the SEC proposed in 2022. The SEC originally proposed expanding disclosure requirements to include direct and indirect greenhouse gas (GHG) emissions as well as the emissions related to the supply chain (so-called “Scope 3 emissions”), if material. The supply chain provision- reportedly absent from the final rule- would have caused many more project owners to require climate-related documentation from general contractors and suppliers. �鶹��ý provided preliminary feedback in 2021 and commented on the proposal in 2022. If the reports are accurate that mandatory supply chain climate-related disclosures are absent from the final rule, this would be a considerable improvement over the original proposal, and in line with �鶹��ý’s recommendations.

Printed with Permission from Troutman PepperWritten by: Andrea Wortzel, Viktoriia De Las Casas, and Morgan Gerard

New Proposal Would Add Requirements Under RCRA

The Inflation Reduction Act empowered the federal agencies to explore the use of construction materials that have a lower embodied carbon (lower emissions associated with their life cycle). Pursuant to this, U.S. Environmental Protection Agency (EPA) and U.S. General Services Administration (GSA) have separate requests out for public feedback. EPA requests public comment on their draft approach in developing a new carbon labeling program for construction materials. And GSA would like feedback on low-embodied carbon asphalt and concrete as well as the use of environmental product declarations (EPDs). �鶹��ý has provided feedback previously and will work with members in drafting any response to these current requests.

On February 20, �鶹��ý and the American Road & Transportation Builders Association (ARTBA) jointly filed amicus briefs in support of the 22 states challenging the Federal Highway Administration’s (FHWA) greenhouse gas performance (GHG) measure rule. �鶹��ý has long held that the Biden administration lacks the statutory authority to issue this rule, as Congress repeatedly debated and rejected the effort.

On Feb. 12, �鶹��ý of America filed a coalition amicus brief with the U.S. Supreme Court, supporting a water utility sector’s request for the Court to clarify whether the Clean Water Act allows the U.S. Environmental Protection Agency (EPA) or authorized states to enforce generic prohibitions in National Pollutant Discharge Elimination System (NPDES) permits. These generic prohibitions subject permitholders to enforcement for exceeding water quality standards without telling permittees how to comply with the permit.

Tell President Biden and your members of Congress to block the Federal Highway Administration’s (FHWA) greenhouse gas (GHG) rule that will force states to spend their highway funds, meant for road and bridge construction, to pay for non-construction initiatives like the procurement of more buses, Amtrak trains, and electric vehicle charging stations.

On February 7, The U.S. Environmental Protection Agency (EPA) lowered the primary annual air quality standard by 25 percent for fine particulate matter or PM2.5 (from 12 ug/m3 to 9 ug/m3). States and counties now need to evaluate whether they meet the new standard, and if not, set up plans to come into compliance. These plans take years to establish and can place an enormous burden on industry, leading to restrictions on equipment use, delays in the permitting process, and the potential loss of Federal highway funding— jeopardizing close to one million jobs. The potential impact on construction and the supply chain is great even if not immediate, as �鶹��ý explained throughout 2023 via individual and coalition comments here and here. At the same time, more than 84 percent of PM2.5 emissions are attributable to non-point sources such as wildfires and unpaved roads.

On Jan. 12, �鶹��ý responded to an Office of Science and Technology request for feedback on how they should develop a coordinated Federal strategy to identify and address gaps in science, data, and research related to environmental justice (EJ). Along with its coalition partners, �鶹��ý emphasized core concepts that underpin many of the association’s prior recommendations to federal agencies related to data collection and use: take steps to improve data quality, flexibility, and transparency, as well as provide for meaningful outreach with industry.